About a month ago, Ars published actual “six strikes” alerts that Comcast has been sending to its customers believed to be violating copyright over its network. (We’re still waiting to see if the other ISPs will oblige our requests.)

In that piece, we noted that Chris Soghoian, a policy analyst at the American Civil Liberties Union (ACLU), had submitted Freedom of Information Act (FOIA) requests to learn more about the creation of the six strikes program. Soghoian and a University of Arizona professor serving as his legal counsel had a pending legal case to compel the Obama Administration’s Office of Management and Budget (OMB) to release more information and related documents.

On Tuesday, a federal court in Washington, DC denied Soghoian’s FOIA application in summary judgment. The court ruled that the OMB was not obliged to release further documents, agreeing with the government that they are protected under a FOIA exemption for drafts.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

“The Court therefore finds defendant has upheld its burden of demonstrating that the documents containing discussions among government employees pertaining to the [memorandum of understanding] are pre-decisional in nature.”

Soghoian told Ars he is “evaluating my options” and isn't sure if he will appeal the decision. “I'm obviously unhappy with the court's decision,” he told Ars.

“Six strikes has been forced on the American public, yet we didn't have a seat at the table during the negotiations. Victoria Espinel is a public servant and is supposed to be working for taxpayers. However, the extent of her involvement in the six strikes negotiations remains shrouded in secrecy. The public has a right to know.”

Promoted Comments

I would agree if "six strikes" were a public policy, but it is not. It is a private policy worked out by the ISPs and media companies. I think we have a right to know what role the government played in that.

48 Reader Comments

I would agree if "six strikes" were a public policy, but it is not. It is a private policy worked out by the ISPs and media companies. I think we have a right to know what role the government played in that.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

IANAL but the way I parse this statement is: "There are two reasons we are not releasing these documents 1) the six strikes program has not started yet, and 2) they discuss future actions that may or may not be taken, and we don't want the public to be confused". Can someone who can sprechen sie legalese much better than I please let me know how I'm doing?

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

IANAL but the way I parse this statement is: "There are two reasons we are not releasing these documents 1) the six strikes program has not started yet, and 2) they discuss future actions that may or may not be taken, and we don't want the public to be confused". Can someone who can sprechen sie legalese much better than I please let me know how I'm doing?

I would agree if "six strikes" were a public policy, but it is not. It is a private policy worked out by the ISPs and media companies. I think we have a right to know what role the government played in that.

I smell figurative "cash in small bills in paper bags changing hands" is the real reason for objecting to releasing the documents. Executive privilege and security classification are often used to hide incompetence, malfeasance, and corruption.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

IANAL but the way I parse this statement is: "There are two reasons we are not releasing these documents 1) the six strikes program has not started yet, and 2) they discuss future actions that may or may not be taken, and we don't want the public to be confused". Can someone who can sprechen sie legalese much better than I please let me know how I'm doing?

You should have written shyterese not legalese. Calling the judge's (sic) comments legalese is an insult to the purveyors of legalese.

I have no more outrage energy. The US government is firmly in the palms of the hands of private enterprises and MNCs.

Yep, the **AA got a man elected to the VP position and bought off half of Congress and now we're seeing the fallout. Getting and staying elected is all about fundraising and that cold, hard cash is just too tempting.

I smell figurative "cash in small bills in paper bags changing hands" is the real reason for objecting to releasing the documents. Executive privilege and security classification are often used to hide incompetence, malfeasance, and corruption.[/quote]

I have no more outrage energy. The US government is firmly in the palms of the hands of private enterprises and MNCs.

It took you this long to run out of outrage energy? You must have had one helluva supply. Personally I don't see this as anything outside the norm with this administration.

Now tell me again; why don't politics interest you guys/gals?

I require more Vespene gas.

I digress, but seriously, this is under par and we're only on the 13th green.

If you're going to make a golf reference, in this case it would be over par. Under par would be good in golf speak.

Also I just can't bring my self to "join 'em" (if you can't beat 'em) yet. I still believe in the benefits a govt brings, just not this one...Also because its not cheap or possible to find a piece of land that one could make into his/her own sovereign country.

Money changed hands, favors were promised, and the government endorsed six strikes wholeheartedly. And it's unlikely any further information will be revealed. Much like utility companies, who get never-ending rate increases, and pass on their expensive multi-million dollar power plant and infrastructure blunders to rate payers. Common sense would dictate that members of the various "public" service commissions would deny much of what these utilities want. But things going on in the "background" influence PSC members to cater to utilities not the public. Call it corruption. Call it conspiracy. In the case of our elected politicians and leaders, some may call it treason. But it's been going on forever. And it always will.

I tell ya, this Obama admin is sporting some of that new cloaking technology that has been recently discussed. That can be the only way that this admin can claim that they are being transparent and open. Not saying other admins were better or worse, but like usual the gov can't keep a promise it makes. Like others have said, this is a private policy that was created by big content & corps behind closed doors while doing the political reach around to the people involved and boning those who weren't.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

IANAL but the way I parse this statement is: "There are two reasons we are not releasing these documents 1) the six strikes program has not started yet, and 2) they discuss future actions that may or may not be taken, and we don't want the public to be confused". Can someone who can sprechen sie legalese much better than I please let me know how I'm doing?

That's about how I read it as well.

I read it that too. But there are problems. #1 doesn't apply because Six Strikes has already begun. #2 assumes people "can't handle the truth" or acknowledges no one would be available to answer the resulting questions about what's revealed.

I agree this reeks of unconstitutionality >> if it's not public policy the government shouldn't have been involved.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

IANAL but the way I parse this statement is: "There are two reasons we are not releasing these documents 1) the six strikes program has not started yet, and 2) they discuss future actions that may or may not be taken, and we don't want the public to be confused". Can someone who can sprechen sie legalese much better than I please let me know how I'm doing?

You could read the actual opinion linked in the article if you want a detailed explanation of the ruling: the best thing about courts is that they issue opinions in writing to explain why they've done what they've done. The one sentence excerpt above isn't wrong, but there's a lot more background and explanation in the court's 25 page opinion.

I would agree if "six strikes" were a public policy, but it is not. It is a private policy worked out by the ISPs and media companies. I think we have a right to know what role the government played in that.

The issue here is not just a private policy. It's an industry-wide policy that has the force of law (specifically contract law), is a mandatory term in customer contracts, and carries between all major providers. The closest things I can think of in other industries are ChekSystems (which is used by banks to identify customers with outstanding accounts at other banks), and the "no-fly-list" for airlines.

When these kinds of agreements are struck industry-wide, there are two typical outcomes - (1) anti-trust lawsuits, or (2) some government oversight and regulation on the process. If the government provided input to the process, or a tacit approval, it is touching the line of public policy and should be subject to a discussion in the appropriate venues (Congress, FCC, etc).

It's merely the true flavor of all left-wing politics--fascism, a fascination with top-down dictatorial rule. Always, these folks make the cardinal error of believing that such "benevolent dictators" will do their bidding. Is Obama's agenda worth the price of bypassing Congress in favor of executive-branch fiat and decree? I say it isn't. People need to wake up and understand one basic reality: Utopia cannot be legislated. Ever. Utopia is, however, always what it is initially promised, and the promises mislead many people. That is, until the holocaust ensues and then people awaken--too late to stop it, though.

It's merely the true flavor of all left-wing politics--fascism, a fascination with top-down dictatorial rule. Always, these folks make the cardinal error of believing that such "benevolent dictators" will do their bidding. Is Obama's agenda worth the price of bypassing Congress in favor of executive-branch fiat and decree? I say it isn't. People need to wake up and understand one basic reality: Utopia cannot be legislated. Ever. Utopia is, however, always what it is initially promised, and the promises mislead many people. That is, until the holocaust ensues and then people awaken--too late to stop it, though.

History is littered with failed utopias. Another problem is arrogance of the "elites" in assuming they are some how more competent than anyone else and assuming they know best for everyone.

So by the judges reasoning, if (for example) an Operation Northwoods-style plan leaked out, we shouldn't be able to use the FOIA to get documents about the plans specifics?Not that our government would use disinformation to support the invasion of a nation anymore....

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

I'm not going to argue it's the case here, but in general it CAN mislead the public. Draft documents tend to include things that, for one reason or another, get removed during deliberations before final submission. If you only see the draft (which is very easy in a media environment where anything can be pounced on with a laser focus even if it's out of context), then you might be lead to believe that the Government's position was something it eventually decided was a bad idea.

Given that a draft is, by definition, an incomplete document, I can agree in the abstract that there needs to be a REALLY good reason to compel their release. Until it's approved and no longer a draft, all it's really the truth of is that at some point in the process, some given thing was considered. And if the policy makers were doing their job, all given things should be provided their own due consideration before the final decision is made.

It's merely the true flavor of all left-wing politics--fascism, a fascination with top-down dictatorial rule. Always, these folks make the cardinal error of believing that such "benevolent dictators" will do their bidding. Is Obama's agenda worth the price of bypassing Congress in favor of executive-branch fiat and decree? I say it isn't. People need to wake up and understand one basic reality: Utopia cannot be legislated. Ever. Utopia is, however, always what it is initially promised, and the promises mislead many people. That is, until the holocaust ensues and then people awaken--too late to stop it, though.

Fascism is not an example of left wing politics, your dishonest and dishonorable attempt to rewrite history notwithstanding. People who died fighting fascism - socialists, communists, trade-unionists - understood the meaning of right wing terror.

And of course this takes nothing away from the horrible atrocities committed by communist rulers, particularly against capitalists, nationalists, and patriots.

But claiming that fascism was a left wing phenomenon displays: (1) the fascist technique of the "big lie"; (2) a fundamental lack of understanding history; (3) a complete misunderstanding of what words mean.

This is pretty much on the same level of accuracy as denying the holocaust, and equally disgusting.

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

I would agree if "six strikes" were a public policy, but it is not. It is a private policy worked out by the ISPs and media companies. I think we have a right to know what role the government played in that.

Currently 25 up-votes and 1 down-vote. Anyone want to take a guess on who down-voted him?

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

I'm not going to argue it's the case here, but in general it CAN mislead the public. Draft documents tend to include things that, for one reason or another, get removed during deliberations before final submission. If you only see the draft (which is very easy in a media environment where anything can be pounced on with a laser focus even if it's out of context), then you might be lead to believe that the Government's position was something it eventually decided was a bad idea.

Given that a draft is, by definition, an incomplete document, I can agree in the abstract that there needs to be a REALLY good reason to compel their release. Until it's approved and no longer a draft, all it's really the truth of is that at some point in the process, some given thing was considered. And if the policy makers were doing their job, all given things should be provided their own due consideration before the final decision is made.

Keeping with my "Operation Northwoods" line of talk, it's less important that these sorts of things are made by a government agency, its who's supporting it inside the government. If it's some sort of low level desk worker who wrote it up, and it was ignored/denounced by his superiors, that'd be one thing. But if "everyone" was on board with it, does it being a draft really matter?

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

Here's the problem:

People are stupid.

That's the whole problem. You have insane nutters who run around ranting and raving who have no idea what they're talking about, and who will misconstrue everything, ect.

Because they are, well, crazy nutters who know and understand nothing.

I have no problem with the decision. Its ultimately a private matter between the companies.

Don't like it? Form your own ISP. Or you know, stop violating international copyright law.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

I'm not going to argue it's the case here, but in general it CAN mislead the public. Draft documents tend to include things that, for one reason or another, get removed during deliberations before final submission. If you only see the draft (which is very easy in a media environment where anything can be pounced on with a laser focus even if it's out of context), then you might be lead to believe that the Government's position was something it eventually decided was a bad idea.

Given that a draft is, by definition, an incomplete document, I can agree in the abstract that there needs to be a REALLY good reason to compel their release. Until it's approved and no longer a draft, all it's really the truth of is that at some point in the process, some given thing was considered. And if the policy makers were doing their job, all given things should be provided their own due consideration before the final decision is made.[/quote]I don't think there's a very good reason that things that were on the table should be hidden, and there is a lot of value to society in knowing what politicians did consider.

The 6 Strikes team just gave a presentation and revealed some details.The MPAA is very concerned that every strike be accurate, but they are still using Dtecnet who can't figure out that content owned by HBO that is posted on HBO.com isn't pirated.They are also using Vuze to collect IPs. This violates the terms of service for Vuze, and one would hope that Vuze enforces those terms of service post haste. I mean the ISPs are using their terms of service to make account holder accept blame for actions they might not even have been aware of, why would they just ignore another companies terms?

"Motion Picture Industry Group Names Ex-Senator Dodd as Its New Chief"

" Joining the lobbying ranks is a reversal for Mr. Dodd, who last year told The Connecticut Mirror that he was not interested in influence peddling.

“No lobbying, no lobbying,” he was quoted as saying. Mr. Dodd said in the interview on Tuesday that when he made that comment he was referring to the law banning him from personally lobbying for two years. "

“Protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision,” Judge Royce C. Lamberth wrote.

Is so much bullshit is unbelievable. Misleading the public? How? By revealing the truth? WOW.

Was or is Judge Lamberth on the FISA court? That would make any decision balanced.

"Motion Picture Industry Group Names Ex-Senator Dodd as Its New Chief"

" Joining the lobbying ranks is a reversal for Mr. Dodd, who last year told The Connecticut Mirror that he was not interested in influence peddling.

“No lobbying, no lobbying,” he was quoted as saying. Mr. Dodd said in the interview on Tuesday that when he made that comment he was referring to the law banning him from personally lobbying for two years. "

If you're suggesting that Dodd was bought off by the MPAA, you're probably wrong. First, if politics is a person's profession, then if they don't retire they're going to look for employment in politics after they leave the Senate, and there are very few public sector positions that can beat out the job of Senator.Lobbyist firms on every side want experienced politicians, because they know people. They have the connections to the people in charge, and are the best people for advancing their cause. As a firm with practically infinite money, they can afford a healthy salary for the boss (2.4 million in this case).The MPAA gets an experienced and influential leader at their head, and Dodd gets a salary that's almost 20 times what he made as a senator.

I would agree if "six strikes" were a public policy, but it is not. It is a private policy worked out by the ISPs and media companies. I think we have a right to know what role the government played in that.

I'm really disappointed that this comment was chosen as an editor's pick.

While there may not be evidence directly linking the government's direct involvement, the trade agreements such as ACTA are proof that our dear old government is in bed with the media companies.